A bumpy ride

In the case ofFulcrum Pharma
(Europe) Ltd v Bonasserathe employment appeals tribunal (EAT) held
that an employment tribunal was correct to find that an employee
had been unfairly dismissed for redundancy when her employer had
identified her as the only employee at risk. It had failed to
consult properly with her over whether a more junior employee
should have been included in the pool for selection.

Where there is a genuine redundancy
situation, a dismissal may still be unfair if the employer acts
unreasonably in the redundancy process.

This includes the identification of
the correct pool for selection and can also entail an employer
giving consideration to offering a potentially redundant employee
an alternative post already filled by another individual, and
making that person redundant instead. This is known as
"bumping".

B was recruited in January 2006 as
an HR executive with responsibility for a team of administrative
staff. Another employee C joined the company is mid 2008 as a more
junior HR executive in a supporting role to B. Towards the end of
2008 B suffered a suspected heart attack. She was off work until
February 2009 and during her absence, C took on some of her
duties.

Shortly after B's return to work,
the company announced that it would be making redundancies. It also
decided to reduce the HR department and remove the executive role
which B had undertaken prior to her absence.

The company informed B that
she was at risk of redundancy. B contended that both she and C
should have been placed at risk. She should not have been in a pool
of one. B further contended that C should be made redundant since B
had more experience.

Despite this, the company
decided to terminate the employment of B and retain C. Accordingly,
B was dismissed and she brought a claim of unfair dismissal.

The employment tribunal held
that as the human resources department was being reduced from two
to one, the correct pool should have included both B and C.

On appeal to the EAT, the EAT
approved a finding that the employer should also have considered
the possibility of "bumping"a more junior employee. The EAT also
said that it was not necessary for a senior employee to tell his or
her employer that he or she is prepared to accept a more junior
role or a pay cut before the employer has an obligation to consider
it. This places the onus squarely on the employer.

The important lesson to take from this case is primarily
the employer's failure to consult with C. It wasn't the failure to
"bump"of itself that led to a finding of unfair dismissal as the
employer had applied its mind to the issue. Where it fell down
however, was in failing to discuss this with C.
read more about redundancy here